Those Crazy Socialists!

August 10 Hearing To Try To Prevent Benefit Cutoffs In Kentucky and West Virginia

     Ned Pillersdorf's Facebook page indicates that there will be a telephone hearing on August 10 on his motion to stop Social Security's plan to try to cut off the disability benefits of almost 1,500 of Eric Conn's former clients in Kentucky and West Virginia.

     I keep wondering when each of these folks gets an individual evidentiary hearing on the question of whether they were found disabled as a result of "fraud or similar fault." Social Security seems to be trying to go yada, yada, yada past this issue but it seems to me to be basic administrative law as well as basic due process.
     The evidence of this "fraud or similar fault" is so strong that Social Security wants to summarily cut all these claimants off benefits, yet it wasn't strong enough that:

• A U.S. Attorney would bring criminal charges against Conn;
• The Kentucky Bar would try to take away Conn's law license or discipline him in any way;
• The Social Security Administration would bring changes that would prevent Conn from continuing to practice before the agency.

     If, or perhaps when, these evidentiary hearings start, I'd like to hear the testimony of the person at Social Security who is responsible for bringing actions to bar attorneys from practicing before the agency because of misconduct. Why didn't you bring an action against Conn? Or, maybe, you did and couldn't convince an Administrative Law Judge to discipline Conn? Which is it?

A Debate That Shouldn't Come To The U.S.

     I hope this debate isn't coming to the U.S.

Question About Eric Conn's Former Cases

     Is Social Security planning to continue these claimants on interim benefits after the Appeals Council remands the cases for new hearings? If not, these are fee generating cases. The fees will be meager but there will be fees if the claimants aren't going to be drawing interim benefits. I'm not exactly sure how that changes the equation for attorneys who might want to get involved but it may. Also, if these claimants will be getting interim benefits, from the point of view of the claimant, there's no great rush about getting the cases heard. I fear that the claimants and their attorneys will not have an adequate amount of time to develop the cases if they're all to be heard before the end of the year.
     Overall, this is a difficult situation. I have strong doubts that it will be possible to get enough volunteer attorneys to take the cases. There's just too many cases. They're going to be messy cases covering many years. It's not just the question of whether the claimant was disabled as of the time they were originally put on benefits. There's also the issue of whether they became disabled at a later date. That's also at issue. The cases will require a lot of medical development. It's unlikely that the claimants can pay for all those medical records. Geographically, it's a remote area. If all these cases are going to be heard before the end of the year, the time frames are difficult for everyone, including Social Security.

NOSSCR Seeking Volunteer Attorneys

     A message from the National Organization of Social Security Claimants' Representatives (NOSSCR) to its members:

PRO-BONO REPRESENTATION SOUGHT

Approximately 1500 SSDI beneficiaries in Kentucky and West Virginia have received notices from SSA advising them that they risk benefit suspension. These individuals, who were represented by Eric Conn, had submitted medical evidence from the doctors he worked most closely with, and had their claim adjudicated by ALJ David Daugherty. The SSA notice states that SSA is disregarding the medical evidence from the doctors in question and instructs the beneficiaries to submit additional medical evidence to document their disability. Failure to do so will result in the suspension of benefits. Although the Appeals Council has the authority to continue a claimant in pay status if additional evidence is submitted, we anticipate that the majority of these individuals will have their cases remanded for a hearing. 

Many local attorneys have been working tirelessly to protect these individuals' rights and benefits, through preliminary injunctions, wrongful death actions, motions to freeze Conn's assets, and pro bono representation at the Social Security ALJ hearings. These individuals need representation to assist them in obtaining this evidence, and to represent them before the Appeals Council or at an ALJ hearing, if needed. We expect that there will be no funds available to pay attorneys. To date, approximately 75 attorneys have volunteered to help represent the claimants at hearings or to provide training or other resources to volunteer lawyers. 

NOSSCR has paired with the Appalachian Research and Defense Fund (AppalReD) and other local legal services organizations to provide pro bono representation to these individuals. 

 I am personally calling on NOSSCR members to volunteer their time in one or more of the following ways:

A. Represent one or more clients on a pro bono basis, including evidence gathering and representation at a hearing if needed.

1. Please indicate if

a. you could travel to the Prestonburg or Huntington area to interview clients and/or represent at the hearing.

b. you cannot travel, but are close enough that the client can travel to you.

c. you can represent an individual in a three way video hearing.

 B. Provide training for attorneys with little or no experience in handling Social Security claims. A live training session will be held in Lexington, KY in August. There may also be the possibility of webinar training, with recording done either at a central location or through a provider such as "go to meetings.com." 

C. Be a resource for one or more less experienced local attorney who is representing an individual on a pro bono basis and has received some training. 

Here is what we have learned: 

• Beneficiaries were originally told they had 10 days to submit evidence to the Appeals Council. Everyone who has asked for a 30-day extension of time has received it. If evidence has been submitted that shows the original decision was correct when made, the Appeals Council will close the redetermination case. If the Appeals Council cannot issue a favorable decision, the case is remanded to an ALJ. 

• Up to 1500 hearings will be scheduled between September and December. 

• We have been told that the hearings will be scheduled to be video hearings with ALJs from the St. Louis National Hearing Center. The individual has 30 days from receipt of the ODAR acknowledgement to opt out of a video. If an individual requests an in-person hearing, one of these ALJs will come to Prestonburg, KY for an in person hearing. 

• 3- way video hearings will be available so the attorney and client need not be in the same area. Although this is certainly not an ideal situation, it may be the only way to obtain sufficient representation for this large number of affected individuals. We anticipate that someone from a local legal aid office will be with the claimants during the hearing, though not representing them when the representative is appearing elsewhere by video. 

• The ALJ will be determining whether the individual was eligible for benefits when they were originally awarded. If the ALJ's decision is unfavorable, benefits will cease. All appeal rights are available. 

• These redetermination are, according to the government, required by 42 U.S.C. sec 405(u)(1)(A) and (B). These redeterminations occur "if there is reason to believe that fraud or similar fault was involved in the application of the individual for such benefits." The purpose of the redetermination is to evaluate whether the individual was entitled to disability benefits at the time of the original decision, and adjudicators are instructed to disregard any evidence considered by the original adjudicator where "there is reason to believe that fraud or similar fault was involved in the providing of such evidence." 

• Although the evidence is being disregarded as fraudulent, to the best of our knowledge neither the attorney nor the doctors have been sanctioned for fraudulent behavior in these cases. In a decision issued Monday July 27, the 2011 qui tam complaint was dismissed in part because for many of the claims asserted by the whistleblowers failed to "allege a specific claim submitted by Conn that was false or fraudulent in a manner that was material to the government's decision to pay the claim … they never tie a specific case to a specific false or fraudulent claim." (U.S. ex rel Griffith and Carver v. Conn, ED KY)) 

Your help is desperately needed. The local attorneys anticipate that they can serve fewer than 15% of the affected individuals. Please let me know as soon as possible if you can help in any or all of the 3 ways listed above. You can send an email to nosscr@nosscr.org and I will give your name and contact information to AppalReD legal services who will then be in touch with you directly. 

In addition to helping these individuals, we anticipate that your pro bono representation will be recognized by others and will help to show that the representatives in this field are truly involved in ensuring the integrity of the Social Security disability process and in ensuring full due process for Social Security claimants and beneficiaries. 

 Barbara R. Silverstone Executive Director

     Here's a little information on the St. Louis National Hearing Center. It's reversal rate (excluding dismissals) is about 46%, making it somewhat below average. The office includes two ALJs with extraordinarily low reversal rates and one with an extraordinarily high reversal rate. It has disposed of 5,746 cases in the first nine months of the fiscal year, although 16% of these were dismissals. Probably, there won't be many dismissals in these cases. They had a 4,103 case backlog as of the end of June. Also, it's a good bet that those ALJs REALLY don't want to travel.

Read This If You Think That The ADA Means That More Disabled People Can Work

     From TPM Cafe:

Twenty-five years ago this past Sunday, the Americans with Disabilities Act (ADA) was signed into law. Today, people with disabilities are less likely to be employed than they were before the law was enacted. Workers with disabilities earn, on average, about $14,000 less than similar workers without disabilities. About one in every three disabled Americans lives in poverty.

Texas ALJ Draws Fire For Belittling Vet's Claim Of PTSD

     A Social Security Administrative Law Judge (ALJ) in Texas is drawing scrutiny after laughing at a veteran's story of developing Post Traumatic Stress Disorder (PTSD) as a result of service on an aircraft carrier during the Iraq war.

     Let me give a hint to ALJs based upon a lot of experience.Whether an individual develops PTSD after being exposed to stress has more to do with the individual's psychological makeup than to the nature of the stress. Some people don't develop PTSD even though they are subjected to incredible stress. Others develop PTSD after exposure to what most people would regard as only moderate or even mild stress. People who suffer from bipolar disorder are six times more likely to develop PTSD, which suggests to me that there is a genetic propensity to develop PTSD.

     In any case, the individual who is the subject of this newspaper article was certainly subjected to considerable stress.

OIG Report On Tax Delinquent Social Security Employees

     Social Security's Office of Inspector General (OIG) has produced a report about the agency's employees who are delinquent in paying their federal taxes. See below for a chart. I'd call it sort of a gotcha report, good for little more than helping those who want to criticize civil servants. 

     Social Security employees are in about the same range as other federal employees when it comes to tax delinquency. 

     By the way, the report shows that 1.8% of Social Security's Administrative Law Judges and 1.2% of its Senior Executive Service employees are tax delinquent. 

     I didn't see any comparable numbers for non-federal government workers. I'd bet it's considerably higher.